Appeal Against Sentence By Harry Finnegan Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young,Lord Menzies |
| Neutral Citation | [2016] HCJAC 88 |
| Date | 14 September 2016 |
| Year | 2016 |
| Published date | 05 October 2016 |
| Court | High Court of Justiciary |
| Docket Number | HCA/2016 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 88
HCA/2016/000321/XC
Lord Menzies
Lord Drummond Young
OPINION OF THE COURT
delivered by LORD MENZIES
in
APPEAL AGAINST SENTENCE
by
HARRY FINNEGAN
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: F Mackintosh; Faculty Services Limited
Respondent: M McFarlane AD; Crown Agent
14 September 2016
[1] The appellant appeared at Dundee Sheriff Court on 24 May 2016 and tendered a plea of guilty under certain amendments to a charge on an indictment that on 15 April 2015 at a public house in Dundee he did assault Kevin Simpson and did repeatedly push him, punch him to the ground and repeatedly punch and kick him on the head and body to his severe injury and permanent disfigurement. It will immediately be appreciated that that charge of assault to severe injury and permanent disfigurement is a serious charge and we make it clear at the outset that the court regards the kicking of a person on the ground about the head as a very serious matter.
[2] As the sheriff has noted in his report to us at paragraph 8:
“The kicking was a sustained assault on a man in a vulnerable position. The licensee had to restrain the appellant physically. Kicking on the head in particular, which by his plea the appellant admitted, is dangerous. Your Lordships’ court has recognised that repeatedly. I have known it to inflict brain damage and I have known it to kill. On this occasion the complainer did not suffer such catastrophic consequences but he did suffer injuries which are admitted to have been severe and he now has a scar on his face and some psychological consequences.”
We accept all of those observations made by the sheriff and agree with them. However, we also take account of the particular circumstances which gave rise to this serious incident, in particular that the appellant who was aged 19 at the time of the offence had that day attended the funeral of a friend who had committed suicide and he was as a result upset and drank too much alcohol following upon the funeral. We take into account that he was of previous good character. He is a first offender and he had a good work record.
[3] We take account of his age and we also take account of the statutory provisions which Parliament has enacted particularly at section 207(3) of the Criminal Procedure (Scotland) Act 1995 which provide “the court shall not impose detention on an offender under 21 years of age unless it is of the opinion that no other method of dealing with him is appropriate and the court shall state its reasons for that opinion”. We were referred in submissions on...
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